Affirmative Consent Laws: How Patient Permission for Medical Substitution Actually Works

There’s a big mix-up going on. You’ve probably heard about affirmative consent in the context of sexual assault laws - the "yes means yes" rule. But now you’re seeing it tied to medical care, like when a family member makes decisions for an unconscious patient. That’s not how it works. And confusing these two things can actually hurt people.

What affirmative consent really means

Affirmative consent laws were created to change how we talk about sexual activity. They don’t say "no means no." They say "only yes means yes." That means consent has to be clear, active, and ongoing. You can’t assume it. You can’t rely on silence. You need words or actions that show someone is willingly agreeing - and they can take it back at any time.

These laws started showing up in U.S. states around 2014, especially on college campuses. California’s Senate Bill 967 was one of the first. It made it clear: if someone is passed out, drunk, or scared into silence, that’s not consent. It’s not about whether they fought back. It’s about whether they said or did something that meant "yes." This was a big shift. Before, many systems assumed consent unless someone said "no." That put the burden on the victim to resist. Affirmative consent flipped that. It put the responsibility on the person initiating the activity to make sure they had real, ongoing permission.

Medical consent is a completely different system

Now, let’s talk about medical care. When a patient can’t speak for themselves - maybe they’re in a coma, have dementia, or are too sick to understand - doctors don’t use affirmative consent rules. They don’t wait for a family member to say "yes" out loud before giving a treatment.

Instead, they follow something called informed consent - and when the patient can’t consent, they use substituted judgment.

Informed consent means the doctor explains what’s wrong, what the treatment is, what the risks and benefits are, what other options exist, and what happens if you do nothing. The patient has to understand this, and then they say yes. It’s not just signing a form. It’s a conversation.

But when the patient can’t understand or speak? That’s where substituted judgment comes in. The law says: who would make the decision for this person? Usually, it’s a family member, a spouse, or someone named in an advance directive. But here’s the key: they’re not supposed to decide what they think is best. They’re supposed to ask: "What would this patient have wanted?"

For example: if someone spent their whole life saying they never wanted to be kept alive on machines, and now they’re in a coma, the surrogate shouldn’t say, "I’d want to try everything." They should say, "They made it clear they didn’t want that."

Why you can’t mix the two

Some people think, "If we need clear yeses for sex, why not for medicine?" It sounds fair. But the systems are built for totally different purposes.

In sexual situations, the goal is to prevent coercion. People need to feel safe saying no without fear. That’s why affirmative consent requires active, verbal, or physical affirmation.

In medicine, the goal is to respect autonomy while allowing urgent care to happen. If a patient has a heart attack and no one can answer whether they’d want CPR, doctors can’t wait for someone to say "yes" out loud. They have to act based on what the patient would likely have chosen - or, if that’s unknown, what’s in their best interest.

And here’s the real problem: if you tried to apply affirmative consent to medical substitution, you’d create dangerous delays. Imagine a parent rushing their child to the ER after a car crash. The child is unconscious. The doctor says, "We need to operate now to save their life." The parent is in shock. They don’t say "yes" clearly. Do you wait? Do you risk their life because they didn’t give a verbal yes?

That’s why the law doesn’t work that way.

Who makes decisions when a patient can’t speak?

In most U.S. states, including California, there’s a clear order for who can make medical decisions for someone who lacks capacity:

• Someone named in a legally valid advance directive (like a living will or healthcare proxy)
• A court-appointed guardian
• Spouse or domestic partner
• Adult children
• Parents
• Other close relatives

This isn’t random. It’s based on who’s most likely to know the patient’s values. The law assumes the spouse or child knows better than a cousin or friend.

There are exceptions, too. In California, minors as young as 12 can consent to treatment for STDs, HIV, or substance abuse - even if their parents disagree. That’s not substitution. That’s recognizing a young person’s right to control their own body in specific situations.

What happens if no one knows what the patient would want?

Sometimes, there’s no advance directive. No one really knows the patient’s wishes. Maybe they never talked about it. Maybe they were young, or isolated.

In those cases, the law shifts to the "best interest" standard. The surrogate makes the decision based on what a reasonable person would choose under those circumstances. Is the treatment likely to help? Is it burdensome? Is it just prolonging suffering?

This isn’t perfect. But it’s the system we have. And it’s designed to protect patients who can’t speak for themselves - not to create legal hurdles that delay care.

Why this confusion exists

You’re not alone if you’re confused. A 2023 survey at the University of Colorado Denver found that 78% of undergraduates mixed up affirmative consent and medical consent. They thought "yes means yes" applied to both.

That’s because the words sound similar. Both use the word "consent." Both involve personal autonomy. Both are about rights.

But that’s where the similarity ends. One is about preventing sexual violence. The other is about protecting medical rights and enabling life-saving care.

Even medical schools have to teach this distinction. Students often get it wrong on exams. One Reddit thread from r/medschool in January 2023 had over a thousand upvotes for a comment that said: "Affirmative consent is for sexual activity policies on campus; medical consent uses different standards based on patient capacity and disclosure requirements."

What’s changing - and what’s not

In 2023, the California Supreme Court made it crystal clear in a case called Doe v. Smith: affirmative consent laws apply only to sexual misconduct cases under Title IX and education codes. They don’t touch medical decisions.

The American Medical Association also updated its guidelines in 2023 to warn doctors: "Do not apply sexual consent standards to medical decision-making." Why? Because it creates confusion, delays care, and misunderstands the legal foundation of medical ethics.

Meanwhile, medical consent laws keep evolving - but in their own direction. The federal CARE Act of 2023 focused on improving advance directives and making sure people know their rights. It didn’t mention affirmative consent once.

The #MeToo movement changed how we talk about sex. That’s good. But it didn’t change how we talk about medicine.

What you should do

If you care about your own medical future, don’t wait for an emergency. Write down your wishes. Name someone you trust to speak for you. Talk to them. Not just once - have the conversation again every few years.

You don’t need a fancy lawyer. A simple advance directive form from your state’s health department will do. It’s free. It’s legal. And it gives your family peace of mind.

If you’re a caregiver, don’t guess. Look for clues. Did they say they didn’t want to be hooked up to machines? Did they refuse a certain treatment before? Did they talk about quality of life over quantity? Those are your guides.

And if someone tells you that medical substitution needs "affirmative consent," correct them gently. It’s not a technicality. It’s a matter of life and death.